The New South Wales Independent Commission Against Corruption (ICAC) has released its report into conduct by the Commissioner of the NSW State Emergency Service (SES). There is also substantial media coverage of the issue – see ‘ICAC recommends dismissal, prosecution of NSW SES Commissioner Murray Kear over sacking of whistleblower‘, ABC Onlline, 28 May 2014; ‘ICAC finds SES Commissioner Murray Kear corrupt’, Sydney Morning Herald, 28 May 2014; ‘NSW SES commissioner Murray Kear facing call to be sacked after ICAC finds him corrupt’, Daily Telegraph, 28 May 2014.
The ICAC report and the media reports outline the facts and basis findings against Commissioner Kear so I don’t need to spell them out in detail. Given the legal nature of this blog I’ll add to that other coverage with a discussion of the law. Before I do that I need to disclose that I am a volunteer with the NSW SES and, in that capacity, have met Commissioner Kear and both Deputy Commissioners Pearce and McCarthy. Further, I have been conducting research funded by the Bushfire CRC. In my professional capacity I have significant contact with the many of the chief officers of Australia’s emergency services including Commissioner Kear. My engagement with Commissioner Kear has been more significant in that professional capacity than in my volunteering. The gist of the findings against the Commissioner relate to allowing his friendship with Deputy Commissioner Pearce to influence his actions and the performance of his duties. In short his friendship gave rise to a conflict of interest that he failed to disclose or address. I would fall into the same error if I allowed my contact with Commissioner Kear to influence my decision to blog, or not blog, on this significant legal outcome for one of Australia’s emergency services.
To the issue.
The ICAC is established to, inter alia, ‘investigate, expose and prevent corruption involving or affecting public authorities and public officials’ (Independent Commission Against Corruption Act 1988 (NSW) s 2A; ‘ICAC Act’). A public official includes, amongst others, an officer of the public service or a person in the service of the Crown or a public authority (ICAC Act s 3). The SES is an Executive Agency within the Department of Police and Justice (Government Sector Employment Act 2013 (NSW) s 22 and Schedule 1) and, amongst other things, the accounts of the SES are subject to audit by the auditor general (Public Finance and Audit Act 1983 (NSW) Division 4A). It follows that the SES is a public authority (ICAC Act s 3, definition of ‘public authority’) and the Commissioner is an officer of the public service and a person in the service of a public authority; he is a public official.
The definitions of what is corrupt conduct are long; relevantly the definition says (ICAC Act s 8(1)) that corrupt conduct is:
(a) any conduct … that adversely affects … the honest or impartial exercise of official functions by any public official … or
(b) any conduct of a public official that constitutes or involves the dishonest or partial exercise of any of his or her official functions, or
(c) any conduct of a public official … that constitutes or involves a breach of public trust.
Notwithstanding these broad provisions, conduct is not corrupt conduct unless it could also constitute a criminal offence, a disciplinary offence or ‘reasonable grounds for dismissing’ the public official (ICAC Act s 9).
One can see that it is a two stage test; first the ICAC must determine whether or not the alleged conduct occurred and if it did whether it was conduct described in s 8. The Commission must then consider whether or not the conduct also meets the requirements of s 9 and then, and only then, can they find that there was corrupt conduct.
In this case, as the various media reports record, the issue was Commissioner Kear’s dealings with his Deputy Commissioners. Deputy Commissioner McCarthy raised legitimate concerns regarding Deputy Commissioner Pearce’s performance; in short she was alleging impropriety and corruption by Deputy Commissioner Pearce. (The ICAC was not investigating Deputy Commissioner Pearce so there is no finding against him; rather the issue was how Commissioner Kear dealt with the issues). In raising issues of alleged corruption, Deputy Commissioner McCarthy was making a protected disclosure as defined in the Public Interest Disclosures Act 1994 (NSW) s 8(b). It is an offence to take detrimental action against a person who makes a public interest disclosure (s 20).
I won’t detail the allegations against Deputy Commissioner Pearce as they have not been established and are reported elsewhere. The first issue was that Commissioner Kear did not investigate the matters but rather relied on his friend’s assertion that there was no corruption or maladministration. The Commissioner’s response was compared to allegations against another member of staff who was investigated and ultimately dismissed. The ICAC found that there was a long standing friendship between Commissioner Kear and Deputy Commissioner Pearce that the Commissioner failed to disclose when on the panel that first interviewed the Deputy Commissioner for his appointment or when he subsequently appointed the Deputy Commissioner from a reserve list for that position. The Commissioner also failed to either recognise or deal with his conflict of interest when the allegations were raised by stepping aside from the management of the issue and appointing an independent authority or person to investigate the allegations and take any necessary action.
The ICAC referred to the SES Code of Conduct and Ethics and the directions there regarding the management of a conflict of interest. The ICAC said:
The SES Code of Conduct and Ethics policy required Commissioner Kear to be impartial and objective. It also required Commissioner Kear to demonstrate that he was being impartial and objective. He failed to comply with these requirements. Given the nature of his conflict of interest, he should have disqualified himself from dealing with the allegations made against Mr Pearce and should
The ICAC concluded that ‘Commissioner Kear’s conduct in deliberately failing to properly investigate allegations against Mr Pearce … because of his friendship with Mr Pearce is corrupt conduct’. The conduct was corrupt. They found it was corrupt because it was conduct that adversely affected ‘the honest or impartial exercise of official functions by any public official’ that is, his conduct affected his ‘honest or impartial’ performance, corruption does not have to be that person A influences public official, B – here the person adversely affecting the performance of the public official was himself. The conduct was also corrupt because it involved the ‘dishonest or partial exercise’ of the Commissioner’s functinos, that is he had duties and functions that required him to receive and investigate the allegations and he failed to do so or, to the extent he did so, it was only a ‘partial’ exercise of his functions. The ICAC also concluded that Commissioner Kear’s conduct ‘could also constitute or involve a breach of public trust and therefore come within s 8(1)(c) of the ICAC Act’.
The ICAC then had to consider whether this met the test in s 9. It was found that a relevant tribunal could be satisfied that ‘Commissioner Kear has committed a disciplinary offence, namely misconduct, and that his conduct could constitute or involve reasonable grounds for his dismissal’. The tests in ss 8 and 9 being met, the ICAC found that the conduct was corrupt and recommended that ‘minister for police and emergency services should give consideration to the taking of action against Commissioner Kear for the disciplinary offence of misconduct’.
The other issue investigated by the ICAC was how Commissioner Kear dealt with Deputy Commissioner McCarthy. Deputy Commissioner McCarthy was dismissed, without notice, on the basis that the Commissioner had lost confidence in her. She was escorted from the premises and she immediately reported the matter to the ICAC. Commissioner Kear’s submissions were that the dismissal was due to conflicts between the two Deputy Commissioners which could not be resolved and Deputy Commissioner McCarthy’s public criticism of him. The ICAC rejected those reasons, seeing the issue as a personality conflict rather that Deputy Commissioner McCarthy doing her job to raise issues of corruption and maladministration was part of the problem. The ICAC rejected these arguments and found that the reason for the dismissal was as a reprisal for Commissioner McCarthy for raising allegations of corruption against Deputy Commissioner Pearce. Again the ICAC found that Commissioner Kear’s actions fell within the definitions set out in ss 8(1)(a), (b) and (c) of the ICAC Act.
Further, as noted it is an offence to take reprisal action against a person who makes a protected disclosure and sacking them without notice was, in this case, a reprisal action. The ICAC found that a court could be satisfied that this offence had been committed and so recommended that the government obtain advice from the Director of Public Prosecutions to consider launching a criminal case against the Commissioner. The ICAC also recommended that ‘the minister for police and emergency services should give consideration to the taking of action against Commissioner Kear for the disciplinary offence of misconduct … with a view to his dismissal’.
The lesson from this is reflected in an old legal adage, “Be you ever so high, the law is above you” (See ‘The rule of law’). Members of the SES are expected to comply with the Code of Conduct of Ethics and this finding demonstrates that this obligations applies to everyone in the organisation. It is not just a stick to hold over volunteers and unit controllers, it applies at all levels of the organisation.
Outside the emergency service context it demonstrates that there are processes in place to expose corruption and to provide (albeit after a lengthy process) some protection to whistleblowers. That may provide some reassurance but one can’t believe that this whole process has not had a significant personal cost for Deputy Commissioner McCarthy.
For the SES it’s all just a tragedy. It has been revealed that maladministration and corruption has cost the SES significant amounts of money (including some $60 000 in overtime that was allowed to be incurred). That is money that the governments deliver to allow the SES to respond to floods, storms and other emergencies, not to line the pockets of senior staff. Whilst volunteers were, appropriately, not allowed to spend unit funds on a Christmas Party (Alex McConachie, ‘SES volunteers’ Christmas party axed’, The Daily Advertiser, 16 December 2013) State Headquarters funds were, inappropriately, being spent on private vehicles, inappropriate overtime and other excesses. Even more has been spent responding to the allegations both before and during the ICAC inquiry. Hopefully the public scrutiny will not impact upon the goodwill of the volunteers, both the goodwill they show by volunteering and the goodwill they receive from the community that, indirectly, funds the SES through taxes and levies on insurance premiums.